Supreme Court to rule on Prop. 8 ban on gay marriage

The Supreme Court takes up California's ban on gay marriage and a federal law denying benefits for married same-sex couples.

Two men look for a quiet spot to hold their wedding at City Hall in San Francisco… (Marcio Jose Sanchez, Associated…)

WASHINGTON — The Supreme Court set the stage Friday for a historic decision on gay rights, announcing it would hear appeals of rulings striking down California's Proposition 8 and the federal law denying benefits for legally married same-sex couples.

The court could decide in the Proposition 8 case whether the Constitution's promise of equal treatment gives gays and lesbians a right to marry. But the justices also left themselves the option to rule narrowly or even to duck a decision.

In 2008, California voters approved the measure limiting marriage to a man and a woman. Last year, the U.S. 9th Circuit Court of Appeals said the proposition had illegally taken away a right to marry that gays had won in the state courts.

This 9th Circuit decision, though limited to California, was the first by federal judges to reject a state's marriage law.

Ted Olson and David Boies, two nationally prominent attorneys who launched the legal attack on Proposition 8, served notice they would seek a broad ruling national in scope at a time when public opinion has turned in favor of gay marriage rights.

"We are going to address all the issues, focused on the fundamental constitutional right to marry of all citizens," Olson said Friday.

"We ought to have marriage equality as a constitutional right everywhere," Boies added.

They maintained they were not concerned that the decision to hear the case puts in jeopardy their court victory for California gays who wish to marry. If the justices had simply turned down the appeal, gay marriage would have once again been legal in the state.

John Eastman, a California law professor and chairman of the National Organization for Marriage, which supports traditional marriage, saw the court's announcement as a sign that Proposition 8 would be upheld. If so, gay marriage would remain illegal in California, barring another voter initiative.

"It's a strong signal that the justices are concerned with the rogue rulings that have come out of San Francisco. We believe the U.S. Supreme Court will overturn this exercise in judicial activism," said Eastman, a former clerk to Justice Clarence Thomas.

In a second case, the justices will review the constitutionality of the Defense of Marriage Act and its provision denying federal benefits to same-sex couples who are legally married. Judges in New York, New England states and California have ruled this law denies gays and lesbians the equal protection of the laws.

The court agreed to hear the case of Edith Windsor, an 83-year-old widow who was given a $363,000 tax bill by the Internal Revenue Service after her female spouse died in 2009. The two had lived together for 44 years and were married in Canada in 2007. The U.S. government said Windsor did not qualify as a "surviving spouse" under the federal law. A married heterosexual couple would not have had to pay any tax.

A ruling on this issue could affect more than 100,000 gays and lesbians who are married in the United States.

The justices will have at least four options before them in the California case.

First, they could reverse the 9th Circuit and uphold Prop. 8, thereby making clear that the definition of marriage will be left to the discretion of each state and its voters. The defenders of Prop. 8 argue that federal courts should allow this divisive social issue to be resolved over time by voters and state legislatures.

A second possibility would be for the justices to agree with Olson and Boies and rule broadly that denying gays and lesbians the fundamental right to marry violates the Constitution. This would be a historic pronouncement, akin to the 1967 ruling in Loving vs. Virginia, which struck down the laws against interracial marriages.

A third option would be to follow the approach set by the 9th Circuit and strike down Proposition 8 in a way that limits the ruling to California.

The justices could even dismiss the appeal on the grounds that the sponsors of Proposition. 8 had no legal standing to defend it in court, leaving the fate of the law unclear.

Both sides look to Justice Anthony M. Kennedy, a California Republican who is the author of the court's two strongest gay-rights opinions.

Advocates for what they call "marriage equality" believe that Kennedy, 76, would like to cap his career by writing a landmark opinion on gay marriage. However, conservatives who oppose same-sex marriage note that Kennedy also has been a strong supporter of states' rights. They hope he will decide that federal judges should stand back — at least for now — and let the states and their voters resolve the fight over marriage.